The Bank Secrecy Act of 1970, 31 U.S.C. § 1101, requires persons
knowingly transporting monetary instruments exceeding $5,000 into
the United States to file a report with the Customs Service
declaring the amount transported. The Government is authorized
under 31 U.S.C. § 1102(a) to seize and forfeit any monetary
instruments for which the required report was not filed. On
September 10, 1975, claimant Vasquez, upon arrival at Los Angeles
International Airport from Canada, declared that she was not
carrying more than $5,000 in currency, but a customs inspector
discovered and seized from her $8,850 in United States currency. On
September 18, 1975, the Customs Service informed Vasquez by letter
that the seized currency was subject to forfeiture and that she had
a right to petition for remission or mitigation. A week later, she
filed such a petition. Thereafter, from October, 1975, to April,
1976, the Customs Service, suspecting Vasquez of narcotics
violations, conducted an investigation of the petition, but
concluded, after contacting federal, state, and Canadian law
enforcement officials, that there was no evidence of any
violations. Vasquez, however, was indicted in June, 1976, for, and
convicted in December, 1976, of, knowingly and willfully making
false statements to a customs officer. In March, 1977, a complaint
seeking forfeiture of the currency under 31 U.S.C. § 1102(a) was
filed in Federal District Court. Vasquez claimed that the 18-month
delay between the seizure of the currency and the filing of the
forfeiture action violated her right to due process, but the
District Court held that the time that had elapsed was reasonable
under the circumstances and declared the currency forfeited. The
Court of Appeals reversed and ordered dismissal of the forfeiture
action.
Held: On the facts, the Government's 18-month delay in
filing a civil proceeding for forfeiture of the currency did not
violate the claimant's right to due process of law. Pp.
461 U. S.
562-570.
(a) The balancing test of
Barker v. Wingo, 407 U.
S. 514, developed to determine when Government delay has
abridged the right to a speedy trial, provides the relevant
framework for determining whether the
Page 461 U. S. 556
delay in filing a forfeiture action was reasonable. That test
involves a weighing of four factors: length of the delay, the
reason for the delay, the defendant's assertion of his right, and
prejudice to the defendant. Pp.
461 U. S.
562-565.
(b) In this case, the balance of factors under the
Barker test indicates that the Government's delay in
instituting civil forfeiture proceedings was reasonable. Although
the 18-month delay was a substantial period of time, it was
justified where there is no evidence that the Government's
investigation of the petition for remission or mitigation was not
pursued with diligence or that the Government was responsible for
the slow pace of the criminal proceedings. Nor is there any
evidence that Vasquez desired early commencement of a civil
forfeiture proceeding, she never having used the available remedies
to seek return of the seized currency, and she has never alleged or
shown that the delay prejudiced her ability to defend against the
forfeiture. Pp.
461 U. S.
565-570.
645 F.2d 836, reversed and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and
REHNQUIST, JJ., joined. STEVENS, J., filed a dissenting opinion,
post, p.
461 U. S.
570.
JUSTICE O'CONNOR delivered the opinion of the Court.
United States Customs officials seized $8,850 in currency from
the claimant as she passed through customs at Los Angeles
International Airport. The question in this case is whether the
Government's 18-month delay in filing a civil proceeding for
forfeiture of the currency violates the claimant's right to due
process of law. We conclude that the four-factor balancing test of
Barker v. Wingo, 407 U. S. 514
(1972), provides the relevant framework for determining whether the
delay in filing a forfeiture action was reasonable. Applying the
Barker test to the circumstances of this case, we find no
unreasonable delay.
Page 461 U. S. 557
I
A
Section 231 of the Bank Secrecy Act of 1970, 84 Stat. 1122, 31
U.S.C. § 1101, requires persons knowingly transporting monetary
instruments exceeding $5,000 into the United States to file a
report with the Customs Service declaring the amount being
transported. Congress has authorized the Government to seize and
forfeit any monetary instruments for which a required report was
not filed. 31 U.S.C. § 1102(a). Since the Bank Secrecy Act does not
specify the procedures to be followed in seizing monetary
instruments, the Customs Service generally follows the procedures
governing forfeitures for violations of the customs laws, as set
forth in 19 U.S.C. § 1602
et seq. (1976 ed. and Supp. V),
and the implementing regulations. Under these procedures, the
Customs Service notifies any person who appears to have an interest
in the seized property of the property's liability to forfeiture
and of the claimant's right to petition the Secretary of the
Treasury for remission or mitigation of the forfeiture. [
Footnote 1] See 19 CFR § 162.31(a)
(1982). The regulations require a claimant to file the petition
within 60 days. 19 CFR § 171.12(b) (1982).
If the claimant does not file a petition, or if the decision on
a petition makes legal proceedings appear necessary, [
Footnote 2] the appropriate customs officer
must prepare a full report of the
Page 461 U. S. 558
seizure for the United States Attorney. 19 U.S.C. § 1603 (1976
ed., Supp. V). [
Footnote 3]
Upon receipt of a report, the United States Attorney is required
"immediately to inquire into the facts" and, if it appears probable
that a forfeiture has been incurred, "forthwith to cause the proper
proceedings to be commenced and prosecuted, without delay." 19
U.S.C. § 1604 (1976 ed., Supp. V). After a case is reported to the
United States Attorney for institution of legal proceedings, no
administrative action may be taken on any petition for remission or
mitigation. 19 CFR § 171.2(a) (1982).
The Customs Service processes over 50,000 noncontraband
forfeitures per year. U.S. Customs Service, Customs U.S.A. 36
(1982). In 90% of all seizures, the claimant files an
administrative petition for remission or mitigation. Brief for
United States 7. The Secretary in turn grants at least partial
relief for an estimated 75% of the petitions.
Ibid.
Typically, this relief terminates the dispute without the filing of
a forfeiture action in district court.
B
On September 10, 1975, claimant Mary Josephine Vasquez and a
companion arrived at Los Angeles International Airport after a
short visit to Canada. During customs processing, Vasquez declared
that she was not carrying more than $5,000 in currency.
Nevertheless, a customs inspector discovered and seized $8,850 in
United States currency from her. On September 18, 1975, the Customs
Service officially informed Vasquez by letter that the seized
currency was subject to forfeiture and that she had the right to
petition for remission
Page 461 U. S. 559
or mitigation. A week later, Vasquez filed a petition for
remission or mitigation, [
Footnote
4] asserting that the violation was unintentional because she
had mistakenly believed she was required to declare only funds that
had been obtained in another country, and that she had brought the
seized funds with her from the United States.
On October 20, 1975, the Customs Office of Investigation
assigned Special Agent Pompeo to investigate the petition. Within a
few days, Agent Pompeo had interviewed the customs inspectors at
the airport who were involved in the seizure. After several
unsuccessful attempts to contact him, in mid-November, Agent Pompeo
contacted Vasquez' attorney to arrange an interview with Vasquez.
The attorney was unable to meet at that time, and he desired to be
present during the interview with his client. Around this time,
Agent Pompeo also opened a criminal file because she suspected
Vasquez of smuggling drugs. From November, 1975, until April, 1976,
Agent Pompeo contacted various state, federal, and Canadian law
enforcement officials to determine whether the seized currency was
part of a narcotics transaction. [
Footnote 5]
In January, 1976, Vasquez' attorney inquired about the status of
the petition, and was informed it was still under investigation. On
March 2, 1976, Agent Pompeo again contacted the attorney regarding
an interview with Vasquez, and an interview took place three days
later. On April 26, 1976, the attorney again inquired about the
status of the petition and requested that it be acted on as soon as
possible. Also in April, 1976, Agent Pompeo received final reports
from the law enforcement agencies. From these reports, Agent
Page 461 U. S. 560
Pompeo concluded there was no evidence to support a charge of
narcotics violations.
In May, 1976, Agent Pompeo submitted a report to the United
States Attorney, recommending prosecution of Vasquez for the
reporting violation. After Agent Pompeo reinterviewed the customs
agents and reported her findings, the United States Attorney
submitted the case to the grand jury. On June 15, 1976, a grand
jury returned an indictment charging Vasquez with the felony of
knowingly and willfully making false statements to a United States
Customs officer, in violation of 18 U.S.C. § 1001; and with the
misdemeanor of knowingly and willfully transporting $8,850 into the
United States without filing a report, in violation of 31 U.S.C. §§
1058 and 1101. The indictment sought forfeiture of the currency as
part of the misdemeanor count.
In August, 1976, Agent Pompeo recommended that disposition of
the remission petition be withheld until the currency was no longer
needed as evidence at the criminal trial. On December 24, 1976,
Vasquez was convicted on the felony count, but acquitted on the
misdemeanor charge of willfully failing to file a currency report.
[
Footnote 6] Four days after
the criminal trial was completed, Vasquez' attorney again inquired
whether there would be any further delay in acting on the
petition.
On March 10, 1977, the Customs Service informed Vasquez that the
claim of forfeiture had been referred to the United States
Attorney. Within two weeks, a complaint seeking forfeiture under 31
U.S.C. § 1102 was filed in Federal District Court. [
Footnote 7] In answer to the complaint,
Vasquez admitted the factual allegations but asserted as one of
several affirmative
Page 461 U. S. 561
defenses that the Government's "dilatory processing" of her
petition for remission or mitigation and "dilatory" commencement of
the civil forfeiture action violated her right to due process. The
District Court, after a 2-day bench trial held in January, 1978,
determined that the time which had elapsed was reasonable under the
circumstances, and therefore declared the currency forfeited under
31 U.S.C. § 1102.
A divided panel of the Court of Appeals for the Ninth Circuit
reversed. 645 F.2d 836 (1981). Proceeding from the premise that the
Government must bring forfeiture actions promptly because seizures
infringe upon property rights, the Court of Appeals concluded that
the Government's 18-month delay in filing its forfeiture action was
unjustified. The Court of Appeals specifically held that pending
administrative or criminal investigations cannot justify the delay
when the necessary elements for a forfeiture were established at
the time of the seizure and when the claimant seeks a speedy
resolution of the claim. The Court of Appeals likewise rejected the
Government's argument that the claimant should be required to show
that the delay prejudiced her ability to present a defense to the
forfeiture action. As a remedy for the due process violation, the
Court of Appeals ordered dismissal of the Government's forfeiture
action. [
Footnote 8]
Since other Circuits have determined that pending criminal
[
Footnote 9] or administrative
[
Footnote 10] investigations
and prejudice to the claimant [
Footnote 11] are relevant considerations in
determining
Page 461 U. S. 562
whether a delay in instituting forfeiture proceedings violates
due process, we granted certiorari to resolve the conflict. 435
U.S. 1015 (1982). We reverse.
II
The due process issue presented here is a narrow one. Vasquez
concedes that the Government could constitutionally seize her
property without a prior hearing. [
Footnote 12] Nor does Vasquez challenge the sufficiency
of the judicial hearing that was eventually held. She argues only
that the Government's delay in filing a civil forfeiture proceeding
violated her due process right to a hearing "
at a meaningful
time,'" Fuentes v. Shevin, 407 U. S.
67, 407 U. S. 80
(1972), quoting Armstrong v. Manzo, 380 U.
S. 545, 380 U. S. 552
(1965). Unlike the situation where due process requires a prior
hearing, there is no obvious bright line dictating when a
postseizure hearing must occur. Because our prior cases in this
area have wrestled with whether due process requires a preseizure
hearing, we have not previously determined when a postseizure delay
may become
Page 461 U. S. 563
so prolonged that the dispossessed property owner has been
deprived of a meaningful hearing at a meaningful time. [
Footnote 13]
The Government argues that there is no general due process
requirement of prompt postseizure filing of a judicial forfeiture
action. Rather, the Government urges that the standard for
assessing the timeliness of the suit be the same as that employed
for due process challenges to delay in instituting criminal
prosecutions. As articulated in
United States v. Lovasco,
431 U. S. 783
(1977), such claims can prevail only upon a showing that the
Government delayed seeking an indictment in a deliberate attempt to
gain an unfair tactical advantage over the defendant or in reckless
disregard of its probable prejudicial impact upon the defendant's
ability to defend against the charges. The Government argues that,
in the absence of unfair conduct of this sort, the timeliness of
the suit is controlled only by the applicable statute of
limitations. Here, Congress has required the Government to
institute forfeiture proceedings within five years. 19 U.S.C. §
1621 (1976 ed., Supp. V).
We reject the Government's suggestion that
Lovasco
provides the appropriate test for determining whether the delay
violates the due process command.
Lovasco recognized that
the interests of the suspect and society are better served if,
absent bad faith or extreme prejudice to the defendant, the
prosecutor is allowed sufficient time to weigh and sift evidence to
ensure that an indictment is well-founded. While the
Page 461 U. S. 564
value of allowing the Government time to pursue its
investigation applies to the civil forfeiture situation as well as
the criminal proceeding, a major distinction exists. A suspect who
has not been indicted retains his liberty; a claimant whose
property has been seized, however, has been entirely deprived of
the use of the property.
A more apt analogy is to a defendant's right to a speedy trial
once an indictment or other formal process has issued. In that
situation, the defendant no longer retains his complete liberty.
Even if he is allowed to post bail, his liberty is subject to the
conditions required by his bail agreement. In
Barker v.
Wingo, 407 U. S. 514
(1972), we developed a test to determine when Government delay has
abridged the right to a speedy trial. The
Barker test
involves a weighing of four factors: length of delay, the reason
for the delay, the defendant's assertion of his right, and
prejudice to the defendant.
Id. at
407 U. S.
530.
Of course,
Barker dealt with the Sixth Amendment right
to a speedy trial, rather than the Fifth Amendment right against
deprivation of property without due process of law. Nevertheless,
the Fifth Amendment claim here -- which challenges only the length
of time between the seizure and the initiation of the forfeiture
trial -- mirrors the concern of undue delay encompassed in the
right to a speedy trial. The
Barker balancing inquiry
provides an appropriate framework for determining whether the delay
here violated the due process right to be heard at a meaningful
time. We have often repeated the seminal statement from
Morrissey v. Brewer, 408 U. S. 471,
408 U. S. 481
(1972), that "due process is flexible, and calls for such
procedural protections as the particular situation demands."
E.g., Schweiker v. McClure, 456 U.
S. 188,
456 U. S. 200
(1982);
Memphis Light, Gas & Water Division v. Craft,
436 U. S. 1,
436 U. S. 14-15,
n. 15 (1978). The flexible approach of
Barker, which
"necessarily compels courts to approach speedy trial cases on an
ad hoc basis," 407 U.S. at
407 U. S. 530,
is thus an appropriate inquiry for determining whether
Page 461 U. S. 565
the flexible requirements of due process have been met. As we
stressed in
Barker, none of these factors is a necessary
or sufficient condition for finding unreasonable delay. Rather,
these elements are guides in balancing the interests of the
claimant and the Government to assess whether the basic due process
requirement of fairness has been satisfied in a particular case.
[
Footnote 14]
III
In applying the Barker balancing test to this situation, the
overarching factor is the length of the delay. As we said in
Barker, the length of the delay "is to some extent a
triggering mechanism."
Ibid. Little can be said on when a
delay becomes presumptively improper, for the determination
necessarily depends on the facts of the particular case. Our
inquiry is the constitutional one of due process; we are not
establishing a statute of limitations. Obviously, short delays --
of perhaps a month or so -- need less justification than longer
delays. We regard the delay here -- some 18 months -- as quite
significant. Being deprived of this substantial sum of money for a
year and a half is undoubtedly a significant burden.
Closely related to the length of the delay is the reason the
Government assigns to justify the delay.
Id. at
407 U. S. 531.
The Government must be allowed some time to decide whether to
institute forfeiture proceedings. The customs official's decision
to seize property is of necessity a hasty one. Both the Government
and the claimant have an interest in a rule that allows the
Government some time to investigate the situation in order to
determine whether the facts entitle the Government to forfeiture so
that, if not, the Government may return the money without formal
proceedings.
Cf. Lovasco, supra,
Page 461 U. S. 566
at
431 U. S. 791.
Normally, investigating officials can make such a determination
fairly quickly, so that this reason alone could only rarely justify
a lengthy delay.
An important justification for delaying the initiation of
forfeiture proceedings is to see whether the Secretary's decision
on the petition for remission will obviate the need for judicial
proceedings. This delay can favor both the claimant and the
Government.
Cf. Barker, supra, at
407 U. S. 521;
Lovasco, supra, at
431 U. S.
794-795. In many cases, the Government's entitlement to
the property is clear, and the claimant's only prospect for
reacquiring the property is that the Secretary will favorably
exercise his discretion and allow remission or mitigation. If the
Government were forced to initiate judicial proceedings without
regard to administrative proceedings, the claimant would lose this
benefit. Further, administrative proceedings are less formal and
expensive than judicial forfeiture proceedings. Given the great
percentage of successful petitions, allowing the Government to wait
for action on administrative petitions eliminates unnecessary and
burdensome court proceedings. Finally, a system whereby the
judicial proceeding occurs after administrative action spares
litigants and the Government from the burden of simultaneously
participating in two forums. [
Footnote 15]
The Government takes the extreme position, however, that a
pending administrative petition should completely toll the
requirement of filing a judicial proceeding. Nothing in the
statutory scheme or in our cases supports this argument. A claimant
need not waive his right to a prompt judicial hearing simply
because he seeks the additional remedy of an administrative
petition for mitigation. [
Footnote 16] Unreasonable delay
Page 461 U. S. 567
in processing the administrative petition cannot justify
prolonged seizure of his property without a judicial hearing.
Rather, the pendency of an administrative petition is simply a
weighty factor in the flexible balancing inquiry.
Pending criminal proceedings present similar justifications for
delay in instituting civil forfeiture proceedings. A prior or
contemporaneous civil proceeding could substantially hamper the
criminal proceeding, which -- as here -- may often include
forfeiture as part of the sentence. A prior civil suit might serve
to estop later criminal proceedings, and may provide improper
opportunities for the claimant to discover the details of a
contemplated or pending criminal prosecution.
Compare
Federal Rule of Civil Procedure 26(b)
with Federal Rule of
Criminal Procedure 16. In some circumstances, a civil forfeiture
proceeding would prejudice the claimant's ability to raise an
inconsistent defense in a contemporaneous criminal proceeding.
See, e.g., United States v. U.S. Currency, 626 F.2d 11
(CA6 1980). Again, however, the pendency of criminal proceedings is
only an element to be considered in determining whether delay is
unreasonable. Although federal criminal proceedings are generally
fairly rapid since the advent of the Speedy Trial Act of 1974, 18
U.S.C. § 3161
et seq. (1976 ed. and Supp. V), the pendency
of a trial does not automatically toll the time for instituting a
forfeiture proceeding.
In this case, the Government relies on both a pending petition
for mitigation or remission and a pending criminal proceeding to
justify the delay in filing civil forfeiture proceedings. During
the initial seven months after the seizure, the Customs Service was
determining whether to grant the petition. This investigation
required responses to inquiries to state, federal, and Canadian law
enforcement officers. Such an investigation inherently is
time-consuming, and there is no
Page 461 U. S. 568
indication that it was not pursued with diligence. The Customs
Service then referred the matter to the United States Attorney, who
obtained criminal indictments within two months. Importantly, one
count of the indictment sought forfeiture as part of the sentence.
If the Government had prevailed, a civil forfeiture would have been
rendered unnecessary. There is no evidence in the record that the
Government was responsible for the slow pace of the criminal
proceedings, which reached a verdict five months later. After the
criminal trial ended, the Secretary of the Treasury made a final
decision within three months to deny the petition, and the United
States Attorney promptly filed a civil forfeiture proceeding.
We are impressed by the assessment made by the District Court
that the Government had acted with all due speed. Indeed, in an
oral colloquy during trial, the District Judge commented:
"I have been anxious to see in this case whether there has been
a lot of dilitory [
sic] conduct that the government has
really not done what it should do in order to push this thing with
all reasonable speed, and, frankly, I don't see any point in which
the government has been lax."
"If I had found such, and I found it an unreasonable length of
time, I would have been happy to so hold. . . . "
"But, in view of the evidence here, I just cannot see any way in
which this Court can say that the government has not pursued their
claim in all reasonable diligence."
App. 77. In sum, the Government's diligent pursuit of pending
administrative and criminal proceedings indicates strongly that the
reasons for its delay in filing a civil forfeiture proceeding were
substantial.
The third element to be considered in the due process balance is
the claimant's assertion of the right to a judicial hearing.
Page 461 U. S. 569
A claimant is able to trigger rapid filing of a forfeiture
action if he desires it. First, the claimant can file an equitable
action seeking an order compelling the filing of the forfeiture
action or return of the seized property.
See Slocum v.
Mayberry, 2 Wheat. 1,
15 U. S. 10 (1817)
(Marshall, C.J.). Less formally, the claimant could simply request
that the Customs Service refer the matter to the United States
Attorney. If the claimant believes the initial seizure was
improper, he could file a motion under Federal Rule of Criminal
Procedure 41(e) for a return of the seized property. Vasquez did
none of these things, and only occasionally inquired about the
result of the petition for mitigation or remission and asked that
the Secretary reach a decision promptly. The failure to use these
remedies can be taken as some indication that Vasquez did not
desire an early judicial hearing.
The final element is whether the claimant has been prejudiced by
the delay. The primary inquiry here is whether the delay has
hampered the claimant in presenting a defense on the merits,
through, for example, the loss of witnesses or other important
evidence. Such prejudice could be a weighty factor indicating that
the delay was unreasonable. Here, Vasquez has never alleged or
shown that the delay affected her ability to defend against the
impropriety of the forfeiture on the merits. On the contrary,
Vasquez conceded that the elements necessary for a forfeiture under
§ 1102(a) were present in her case.
IV
In this case, the balance of factors indicates that the
Government's delay in instituting civil forfeiture proceedings was
reasonable. Although the 18-month delay was a substantial period of
time, it was justified by the Government's diligent efforts in
processing the petition for mitigation or remission and in pursuing
related criminal proceedings. Vasquez never indicated that she
desired early commencement of a civil forfeiture proceeding, and
she has not asserted or shown
Page 461 U. S. 570
that the delay prejudiced her ability to defend against the
forfeiture. Therefore, the claimant was not denied due process of
law. The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
So ordered.
[
Footnote 1]
In addition to the general remission provisions of Title IV,
Title II of the Bank Secrecy Act contains its own remission
provision, 31 U.S.C. § 1104:
"The Secretary may in his discretion remit any forfeiture or
penalty under this subchapter in whole or in part upon such terms
and conditions as he deems reasonable and just."
[
Footnote 2]
At the time of the seizure in this case, a customs officer could
institute nonjudicial, summary forfeiture proceedings if the value
of the seized merchandise was not more than $2,500.
See 19
U.S.C. §§ 1607-1609. Congress has since raised this limit to
$10,000. 19 U.S.C. § 1607 (1976 ed., Supp. V). Even for a seizure
of property appraised at less than $10,000, the claimant has a
right to a judicial determination upon posting a $250 bond to cover
costs. 19 U.S.C. § 1608.
[
Footnote 3]
At the time of the seizure of the currency from Vasquez, 19
U.S.C. § 1603 contained no requirement of a prompt report of a
seizure by the Customs Service to the United States Attorney for
purposes of instituting forfeiture proceedings. As amended in 1978,
§ 1603 now requires the appropriate customs officer "to report
promptly" to the United States Attorney whenever legal proceedings
"in connection with such seizure or discovery are required." 19
U.S.C. § 1603 (1976 ed., Supp. V).
[
Footnote 4]
On September 11, 1975, the day after the seizure, Vasquez'
counsel had written an informal letter to the District Director of
Customs, explaining why she had not declared the money.
[
Footnote 5]
This inquiry was relevant to the reporting violation. A currency
reporting violation is normally a misdemeanor, but a reporting
violation committed in furtherance of any other federal offense is
a felony.
Compare 31 U.S.C. § 1058
with 31 U.S.C.
§ 1059.
[
Footnote 6]
The conviction on the felony count was subsequently reversed
because court files were left in the jury room during
deliberations.
United States v. Vasqez, 597 F.2d 192 (CA9
1979).
[
Footnote 7]
On March 28, 1977, the Customs Service officially notified
Vasquez that her petition had been denied.
[
Footnote 8]
Because we find no violation of due process, we do not decide
whether dismissal of the forfeiture action with prejudice would be
an appropriate remedy for undue delay.
[
Footnote 9]
E.g., White v. Acree, 594 F.2d 1385 (CA10 1979).
[
Footnote 10]
E.g., United States v. Thirty-Six Thousand One Hundred &
Twenty-Five Dollars in U.S. Currency, 642 F.2d 1211 (CA5),
cert. denied, 454 U.S. 835 (1981)
(
aff'g 510 F.
Supp. 303 (ED La.1980)).
[
Footnote 11]
E.g., United States v. Various Pieces of Semiconductor
Manufacturing Equipment, 649 F.2d 606 (CA8 1981);
United
States v. One 1976 Mercedes 450 SLC, 667 F.2d 1171 (CA5
1982).
[
Footnote 12]
The general rule, of course, is that, absent an "extraordinary
situation," a party cannot invoke the power of the state to seize a
person's property without a prior judicial determination that the
seizure is justified.
Boddie v. Connecticut, 401 U.
S. 371,
401 U. S.
378-379 (1971).
See also North Georgia Finishing,
Inc. v. Di-Chem, Inc., 419 U. S. 601
(1975);
Fuentes v. Shevin, 407 U. S.
67 (1972);
Sniadach v. Family Finance Corp.,
395 U. S. 337
(1969);
cf. Mitchell v. W. T. Grant Co., 416 U.
S. 600 (1974). But we have previously held that such an
extraordinary situation exists when the government seizes items
subject to forfeiture. In
Calero-Toledo v. Pearson Yacht
Leasing Co., 416 U. S. 663
(1974), the Court upheld a Puerto Rico statute modeled after a
federal forfeiture statute, 21 U.S.C. § 881(a), which allowed
Puerto Rican authorities to seize, without prior notice or hearing,
a yacht suspected of importing marihuana.
Pearson Yacht
clearly indicates that due process does not require federal customs
officials to conduct a hearing before seizing items subject to
forfeiture. Such a requirement would make customs processing
entirely unworkable. The government interests found decisive in
Pearson Yacht are equally present in this situation: the
seizure serves important governmental purposes; a preseizure notice
might frustrate the statutory purpose; and the seizure was made by
government officials, rather than self-motivated private
parties.
[
Footnote 13]
In
United States v. Thirty-seven Photographs,
402 U. S. 363
(1971), we construed a statute allowing customs officials to seize
obscene material as requiring a postseizure filing within 14 days
and completion of the hearing in an additional 60 days. That case
interpreted the statute so as to avoid possible First Amendment
problems of prior restraint. The case did not involve, and thus we
had no occasion to address, the time restraints imposed by the Due
Process Clause. Even if we were inclined to interpret the statutes
here in such a way as to avoid any due process question, it would
be impossible to read into the statutory scheme, as we did in
Thirty-seven Photographs, a short statute of limitations,
since 19 U.S.C. § 1621 (1976 ed., Supp. V) expressly allows the
Government to bring a civil forfeiture proceeding within five
years.
[
Footnote 14]
The deprivation in
Barker -- loss of liberty -- may
well be more grievous than the deprivation of one's use of property
at issue here. Thus, the balance of the interests, which depends so
heavily on the context of the particular situation, may differ from
a situation involving the right to a speedy trial.
[
Footnote 15]
By regulation, the Secretary is not allowed to process any
petition for remission or mitigation while a civil forfeiture
proceeding is pending. 19 CFR § 171.2(a) (1982).
[
Footnote 16]
Under the 1978 revisions to 19 CFR § 162.31(a), the Customs
Service is now required to warn claimants that unless they agree to
defer judicial forfeiture proceedings until completion of the
administrative process, the case will be referred promptly to the
United States Attorney for institution of judicial proceedings, or
summary forfeiture proceedings will be begun.
JUSTICE STEVENS, dissenting.
The Fifth Amendment provides that no person shall be deprived of
property without due process of law. In this case, the claimant was
deprived of her property on September 10, 1975.
* No preseizure
process of any kind was provided. The postseizure proceeding that,
under the Court's view, satisfies the constitutional requirement
was commenced on March 22, 1977, over 18 months later.
None of the various activities that various Government
bureaucrats undertook before filing the civil forfeiture proceeding
was required by the Constitution or by any statute. None of these
activities made it impossible, or even arduous, for the Government
to act promptly to establish its right to hold claimant's currency.
In my opinion, a rule that allows the Government to dispossess a
citizen of her property for more than 18 months without her consent
and without a hearing is a flagrant violation of the Fifth
Amendment.
I respectfully dissent.
* The property was not contraband; it was seized simply because
claimant made a misstatement to a customs officer.